2004 PLP 224 (SCMR)

MUNIR A. SHEIKH, J.

By this common judgment, we propose to decide Criminal Petition Nos.503-L and 514-L of 2001, both of which have been directed against the impugned judgment dated 31-5-2001 passed by a Division Bench of the Lahore High Court, Lahore and. questions of law and facts are also identical.

2. Muhammad Nawaz, petitioner in Criminal Petition No.503-L of 2001 alongwith Muhammad Sarwar, Muhammad Khawar and Abdul Rashid were tried under sections 302, 324 and 337-F/34, P.P:C. for the murder of Maqsood Ahmed. According to the facts disclosed in the F.I.R. and those emerging from the evidence of the prosecution are that fight look place suddenly on the question of opening and closing of a drain. The petitioner used his gun and fired at the deceased which resulted in his death whereas Muhammad Sarwar co-accused, fired .at Manzoor Ahmad, prosecution witness No.6 which hit him on his left buttock who fell down. Abdur Rashid, however, used his bat and caused injury to Munir Ahmed complainant who was also examined as P.W.5. Muhammad Khawar was armed with a Mauser who though fired with the said Mauser but it did not hit any member of the complainant party.

3. The trial Court after examining the evidence produced by the prosecution came to the conclusion that the prosecution 'has brought home guilt .to the accused beyond any shadow of doubt therefore, all the accused were convicted under sections 302/34, P.P.C. and sentenced Muhammad Nawaz to death whereas Muhammad Sarwar, Muhammad Khawar and Abdur Rashid were sentenced to imprisonment for life with a fine of Rs. 10,000 each. All the accused were also convicted under sections 324/34, P.P.C. and sentenced to 5 years R.I. with a fine of Rs.10,000 each, in default whereof to undergo 2 years R.I. They were also directed to pay compensation amounting to Rs.10,000 each under, section 544-A, Cr.P.C. to the legal heirs of the deceased.

4. The appeal filed by the said convicts has been decided through the impugned judgment by a Division Bench of the High Court. Death sentence awarded to Muhammad Nawaz, petitioner in Criminal Petition No.503-L of 2001 has been confirmed and murder reference answered in affirmative whereas co-accused Muhammad Khawar was acquitted from the charges giving him benefit of doubt as his fire did not hit any member of the complainant party: Abdur Rashid having been found to have used only his bat therefore, his conviction was converted into under section 337-F(I), P.P.C. and sentenced to a punishment of imprisonment already undergone: The sentence of Muhammad Sarwar under section 324, P.P.C. was however, maintained. It was also held that it was not a case of common intention as the fight took place suddenly on the question of opening or closing of a drain situated in front of the house of the petitioner.

5. Criminal Petition No.503-L of 2001 has been filed by Muhammad Nawaz to challenge his conviction under section 302, P.P.C. and sentence of death whereas Criminal Petition No.514-L of 2001 has been filed by Munir Ahmed, complainant for enhancement of sentences as modified by the High Court of Muhammad Sarwar and Abdur Rashid and also for setting aside the acquittal of Muhammad Khawar and other co-accused.

6. The learned Judge of the High Court in paragraph Nos.19, 20 and 21 of the impugned judgment- have summed up this case which are reproduced below: "19, No doubt the occurrence had taken place as of sudden and no premeditation was involved and the incident has to be treated a free fight but individual roles played by the accused have to be kept in view in the matter of conviction of the accused or the sentences to be awarded to them. The occurrence of course has been admitted. The case of prosecution on the strength of ocular account, the medical evidence and other investigatory and supportive evidence stood established. Involvement of the appellants and the roles played by them in the course of incident were sufficiently highlighted and prosecution case as such stood established. The plea that the accused particularly Muhammad Nawaz had acted in self-defence has been found to be devoid of any force as it is not supported by evidence or the attending circumstances of the case. "

20. This being a case of free fight, individual roles of the accused played by them in the course of incident have to be taken into account in respect of conviction to be recorded or sentences to be imposed on the accused, Muhammad Nawaz had fired at the deceased. We have not noticed any justification for the act of Muhammad Nawaz whereby he had shot to death another human being deceased. Mere exchange of hot words would not have justified taking of life of the deceased. Muhammad Nawaz in our view was rightly convicted by the trial Court and sentence awarded to him was the proper legal sentence keeping in view the facts and circumstances of the case. No mitigating circumstance has been noticed in the matter of sentence to be awarded to Muhammad Nawaz. Conviction and sentences awarded to him by the trial Court are maintained.

21. Muhammad Sarwar appellant had fired at Manzoor Ahmed prosecution witness No.6. The shot had hit in inguinal area of his body. Employment of fire-arm an accused in the commission of offence whereby the accused shoots at another individual is clear manifestation of his intention. Muhammad Sarwar convict was rightly convicted by the trial Court under section 324, P.P.C. The sentence awarded to Muhammad Sarwar by the trial Court has been found to be appropriate sentence as well and the same is maintained. " Learned counsel for the petitioner has not challenged the correctness of the findings recorded by the Courts below that the incident took place in the manner in which it has been stated but only stated that the sentence of death of Muhammad Nawaz should be converted into life imprisonment, as the fight to6k place suddenly therefore, benefit of doubt should have been given to him also, for he acted under the heat of passion. '

7. We have gone through the evidence and find that both Muhammad Nawaz and Muhammad Sarwar armed with guns, had fired on a petty matter of opening and closing of a drain situated in front of the house of the petitioner. The reasons given by the learned Judge of the High Court are in accordance with law and they are based on correct. elaborate and careful appraisal of evidence which satisfy the requirements of principles of appraisal of evidence laid down by the superior Courts for safe administration of criminal justice. Benefit of sudden fight has already been given to the convicts by holding that provisions of section 34, P.P.C. were not attracted. The use of gun by the petitioner in the circumstances, was not justified over such a petty matter. We have heard learned counsel for the petitioner in Criminal Petition No.514-L of 2001 and find that no case has been made out for enhancement of sentence of Muhammad Sarwar and Abdur Rashid as modified by the High Court and against the acquittal of Muhammad Khawar. .

9. Resultantly, both these petitions being meritless, are hereby dismissed and leave refused. N.H.Q./M-442/S Petitions dismissed.